National Consumer Disputes Redressal
M/S. A.R.G Housing Pvt. Ltd. vs Amit Kumar & Anr. on 2 May, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2082 OF 2018 (Against the Order dated 15/10/2018 in Complaint No. 151/2015 of the State Commission Rajasthan) 1. M/S. A.R.G HOUSING PVT. LTD. 252, CHITRANJAN MARG , C-SCHEME JAIPUR ...........Appellant(s) Versus 1. AMIT KUMAR & ANR. S/O. SH. RAJINDER SINGH, R/. 180 KRISHNA NAGAR BHARATPUR 2. MOHIT KUMAR S/O. SH. RAJINDER SINGH R/O. 180 KRISHNA NAGAR BHARATPUR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Ajay Kohli, Advocate
Ms. Priyanka Ghorawat, Advocate
Mr. Amit Sharma, A.R. For the Respondent : Mr. Nitish K. Sharma, Advocate, (Caveator)
Dated : 02 May 2019 ORDER
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainants had booked a villa with the OP in the year 2008. They made three payments totaling to Rs.3,25,140/- to the appellant on different dates. Thereafter, the parties entered into another agreement dated 15.09.2012 where-under it was agreed that the price of the property would be Rs.24,72,006/- and after adjustment of Rs.3,25,140/- which had already been paid to the appellant by that time, balance amount of Rs.21,46,866/- would be paid as per the payment plan agreed between the parties. The said payment plan reads as under:
S. No. Payment Schedule Amount Payable Amount (Rs.) Remarks % of the Total Price 1 Booking Amount 25% 644,145 2 On start of Masonry work 10% 257,658 3 On casting of Ground Floor Slab 10% 257,658 4 On casting of First Floor Slab 10% 257,658 5 On Completion of Plaster 10% 257,658 6 On Completion of Flooring 10% 257,658 7 On Starting of Doors and Windows 10% 257,658 8 On Completion of Outer Development of the House 7.5% + M. Fund 269,717 9 At the time of Possession 7.5% 155,007 Total Amount 2,614,818
2. The complainants made two payments of Rs.5,50,000/- each on 19.12.2012 by way of Demand Drafts and also allege to have paid Rs.3 lacs in cash. They also paid a sum of Rs.20 lacs to the appellant on 03.04.2013 through a bank from which a loan had been taken by them.
3. As per the agreement between the parties, the possession of the house was to be delivered to the complainants by March 2014. The possession admittedly, was not even offered by that date. Vide letter dated 10.08.2014, the appellant informed the complainants that the construction work was in completion stage and ready for possession and they should pay the outstanding amount on or before 25.08.2014. The said letter was followed by another letter dated 21.08.2014 wherein it was stated that the construction work was in full swing and balance amount of Rs.4,25,477/- was due from the complainants. The complainants did not pay the aforesaid amount and approached the concerned State Commission by way of a Consumer Complaint seeking possession of the house with compensation etc.
4. The complaint was resisted by the appellant which alleged delay on the part of the complainants in making payment and also denied the alleged cash payment of Rs.3 lacs. The State Commission having ruled in favour of the complainants, the appellant is before this Commission.
5. As far as the alleged cash payment of Rs.3 lacs on 19.12.2012 is concerned, the complainants have not given any convincing reason for making a cash payment when on the same date, they had made two payments of Rs.5,50,000/- by way of Demand Drafts. Even after the alleged cash payment, no notice was sent by the complainants to the appellant alleging therein that they had also made a cash payment of Rs.3 lacs to the appellant while making payment of Rs.11 lacs by way of two Demand Drafts. The notice alleging cash payment came to be sent only in December 2014. Moreover, no source of the alleged cash payment was either pleaded or proved by the complainants. In this regard, it has to be kept in mind that the parties had chosen to be governed by a detailed written agreement whch also contained a payment schedule agreed between them and therefore, there could be no reason for the complainants to make a cash payment and that too without obtaining any receipt from the appellant. I therefore, hold that the cash payment of Rs.3 lacs to the appellant does not stand proved.
6. It is pointed out by the learned counsel for the appellant that as per the payment plan agreed between the parties, a sum of Rs.6,44,145/- was payable at the time of booking itself. Admittedly, the complainants had paid only Rs.3,25,140/- by that time. The next payment came to be made by him on 19.12.2012. Therefore, the appellant is entitled to suitable interest on the deficient amount of the first installment (Rs.6,44,145/- - Rs.3,25,140/-) for the period from 15.09.2012 to 19.12.2012. Considering all the facts and circumstances of the case, the complainants, in my view, should pay interest on that amount @ 10% per annum.
7. This is also the contention of the learned counsel for the appellant that the complainants had also delayed the payment of other installments which were linked with the stage of construction. However, there is no evidence of the appellant having even demanded the said installments from the complainants at any point of time before 10.08.2014. As and when the construction had reached the stipulated stage, it was obligatory for the appellant to inform the complainants accordingly and call upon them to pay the installments which became due at that stage. The complainants could then verify the actual stage of construction before making payment. That having not been done and the complainants, of their own having paid Rs.11 lacs on 19.12.2012 followed by payment of Rs.20 lacs on 02.04.2013, the appellant, in my view, is not entitled to any interest on the other installments which, according to him, had fallen due before 10.08.2014. Moreover, unless the appellant gives the dates on which the construction had reached the stage at which installments number 2 to 8 were payable, it cannot even be ascertained as to whether there was actually any default and if so, to what extent, in payment of the said installments or not.
8. Coming to the alleged offer of possession, I find that neither in the letter dated 10.08.2014 nor in the subsequent letter dated 21.08.2014, it was claimed that the construction was complete in all respects. In fact, it was expressly stated vide letter dated 21.08.2014 that the construction was in full swing, which would mean that though the construction was going on, it was not complete on that date. More importantly, the possession of the house could not have been and cannot be offered to the complainant without obtaining the requisite Occupancy Certificate. During the course of hearing, I specifically asked the learned counsel for the appellant as to whether the appellant had obtained the requisite Occupancy Certificate in respect of the villa allotted to the complainant. The learned counsel, on instructions states that no Occupancy Certificate is required for the individual unit. However, I am unable to accept the said contention. No house can be allowed to be occupied without obtaining the requisite Occupancy Certificate. Therefore, the appellant ought to have obtained the requisite Occupancy Certificate before it could offer possession of the allotted villa to the complainant. That having not been done, the order passed by the State Commission directing compensation to the extent of Rs.5 lacs cannot be faulted with. Even if compensation in the form of simple interest @ 8% per annum on the amount paid by the complainant to the appellant is awarded w.e.f. the committed date for delivery of possession till date, that would be much more than the amount actually awarded by the State Commission. Therefore, no ground for reduction of the said compensation is made out.
9. For the reasons stated hereinabove, the appeal and the complaint are disposed of with the following directions:
(i) The appellant shall obtain the requisite Occupancy Certificate in respect of the villa allotted to the complainants and then deliver its possession complete in all respects to them within three months from today.
(ii) The balance amount payable to the appellant comprising interest on the amount of Rs. 3,19,005/- (Rs.6,44,145/- - Rs.3,25,140/-) for the period from 15.09.2012 to 19.12.2012 in terms of this order shall be adjusted out of the compensation payable to the complainants in terms of the order of the State Commission.
(iii) The appellant shall also pay Rs.20,000/- per month to the complainants in terms of the order of the State Commission till the possession in terms of this order is given.
(iv) The appellant shall also pay a sum of Rs.25,000/- as cost of litigation to the complainants.
......................J V.K. JAIN PRESIDING MEMBER